-CMK (PC) Graves v. Williams et al, No. 2:2007cv00666 - Document 219 (E.D. Cal. 2011)

Court Description: ORDER signed by Judge Kimberly J. Mueller on 9/30/11: The court declines to adopt the findings and recommendations 209 . The case is referred back to the magistrate judge for resolution of plaintiff's renewed request to depose Dr. Allen as an expert witness and its bearing, if any, on the motions for summary judgment. (Kaminski, H)

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-CMK (PC) Graves v. Williams et al Doc. 219 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PETER DALE GRAVES, Plaintiff, 12 vs. 13 14 No. CIV S-07-0666-KJM-CMK-P ORDER KAREN TODD, et al., Defendants. 15 / 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 18 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by 28 19 U.S.C. 636(b)(1)(B) and Local Rule 302. 20 On March 2, 2011, the magistrate judge filed findings and recommendations, 21 which were served on the parties and which contained notice that the parties may file objections 22 within a specified time. Plaintiff has filed timely objections to the findings and 23 recommendations; several defendants have responded to plaintiff’s objections. 24 /// 25 /// 26 /// 1 Dockets.Justia.com 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 2 304(f), this court has conducted a de novo review of this case. For the reasons set forth below, it 3 declines to adopt the findings and recommendations at this time. 4 During the course of the litigation, plaintiff sought to depose his treating 5 physicians by written questions. See ECF Nos. 131, 148, 158, 159. The magistrate judge 6 restricted the questions plaintiff could ask one physician, Dr. Allen, because the latter was being 7 deposed as a percipient witness rather than as an expert witness. ECF No. 157. Plaintiff sought 8 reconsideration of this order. ECF No. 160. The district court found that the order was not 9 clearly erroneous, but said its determination was without prejudice to plaintiff’s renewing the 10 objections upon a showing he had complied with Rule 26(a)(2) of the Federal Rules of Civil 11 Procedure. ECF No. 168. 12 Plaintiff returned to the magistrate judge with renewed objections, based on his 13 contention that he had properly designated Dr. Allen as an expert witness. ECF Nos. 186-187. 14 The magistrate judge allowed defendants to respond to plaintiff’s renewed showing. ECF Nos. 15 192, 195-196. The docket, which is lengthy and convoluted, does not reflect that the magistrate 16 judge resolved the objections or considered what impact any such resolution might have on the 17 summary judgment proceedings. 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. 20 21 The court declines to adopt the findings and recommendations (ECF No. 209); 2. The case is referred back to the magistrate judge for resolution of 22 plaintiff’s renewed request to depose Dr. Allen as an expert witness and 23 its bearing, if any, on the motions for summary judgment. 24 DATED: September 30, 2011. 25 26 UNITED STATES DISTRICT JUDGE 2

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